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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED,
QUALIFIED, APPROVED OR DISAPPROVED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SUCH ACT OR LAWS AND NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER FEDERAL OR STATE REGULATORY
AUTHORITY HAS PASSED ON OR ENDORSED THE MERITS OF THESE SECURITIES.
WARRANT NO. 5
WARRANT
TO PURCHASE SHARES OF COMMON STOCK
OF
BLUEFLY, INC.
THIS IS TO CERTIFY THAT QUANTUM INDUSTRIAL PARTNERS LDC or its
registered assigns (the "Holder"), is the owner of the right to subscribe for
and to purchase from BLUEFLY, INC., a New York corporation (the "Company"),
forty-eight thousand four hundred fifteen (48,415) (the "Number Issuable"),
fully paid, duly authorized and nonassessable shares of Common Stock at a price
equal to the price at which the Next Round Securities are convertible into or
exchangeable for shares of Common Stock (the "Exercise Price"), at any time, in
whole or in part, from and after the closing of the Next Round Financing and
prior to 5:00 PM New York City time, on May 10, 2005 (the "Expiration Date") all
on the terms and subject to the conditions hereinafter set forth (the
"Warrants").
The Number Issuable is subject to further adjustment from time to
time pursuant to the provisions of Section 2 of this Warrant Certificate.
Capitalized terms used herein but not otherwise defined shall
have the meanings given to them in Section 12 hereof.
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Section 1. Exercise of Warrants.
(a) Subject to the last paragraph of this Section 1, the
Warrants evidenced hereby may be exercised, in whole or in part, by the Holder
hereof at any time or from time to time, on or after the date hereof and prior
to the Expiration Date upon delivery to the Company at the principal executive
office of the Company in the United States of America, of (A) this Warrant
Certificate, (B) a written notice stating that such Holder elects to exercise
the Warrants evidenced hereby in accordance with the provisions of this Section
1 and specifying the number of Warrants being exercised and the name or names in
which the Holder wishes the certificate or certificates for shares of Common
Stock to be issued and (C) payment of the Exercise Price for such Warrants,
which shall be payable by any one or any combination of the following: (i) cash;
(ii) certified or official bank check payable to the order of the Company; (iii)
by the surrender (which surrender shall be evidenced by cancellation of the
number of Warrants represented by any Warrant Certificate presented in
connection with a Cashless Exercise (as defined below)) of a Warrant or Warrants
(represented by one or more relevant Warrant Certificates), and without the
payment of the Exercise Price in cash, in return for the delivery to the
surrendering Holder of such number of shares of Common Stock equal to the number
of shares of the Common Stock for which such Warrant is exercisable as of the
date of exercise (if the Exercise Price were being paid in cash or certified or
official bank check) reduced by that number of shares of Common Stock equal to
the quotient obtained by dividing (x) the aggregate Exercise Price (assuming no
Cashless Exercise) to be paid by (y) the Market Price of one Share of Common
Stock on the Business Day which immediately precedes the day of exercise of the
Warrant; or (iv) by the delivery of shares of the Common Stock having a value
(as defined by the next sentence) equal to the aggregate Exercise Price to be
paid, that are either held by the Holder or are acquired in connection with such
exercise, and without payment of the Exercise Price in cash. Any share of Common
Stock delivered as payment for the Exercise Price in connection with an In-Kind
Exercise (as defined below) shall be deemed to have a value equal to the Market
Price of one Share of Common Stock on the Business Day which immediately
precedes the day of exercise of the Warrants. An exercise of a Warrant in
accordance with clause (iii) is herein referred to as a "Cashless Exercise" and
an exercise of a Warrant in accordance with clause (iv) is herein referred to as
an "In-Kind Exercise." The documentation and consideration, if any, delivered in
accordance with subsections (A), (B) and (C) are collectively referred to herein
as the "Warrant Exercise Documentation."
(b) As promptly as practicable, and in any event within
five (5) Business Days after receipt of the Warrant Exercise Documentation, the
Company shall deliver or cause to be delivered (A) certificates representing the
number of validly issued, fully paid and nonassessable shares of Common Stock
specified in the Warrant Exercise Documentation, (B) if applicable, cash in lieu
of any fraction of a share, as hereinafter provided, and (C) if less than the
full number of Warrants evidenced hereby are being exercised or used in a
Cashless Exercise, a new Warrant Certificate or Certificates, of like tenor, for
the number of Warrants evidenced by this Warrant Certificate, less the number of
Warrants then being exercised and/or used in a Cashless Exercise. Such exercise
shall be deemed to have been made at the close of business on the date of
delivery of the Warrant Exercise Documentation so that the Person entitled to
receive shares of Common Stock upon such exercise shall be treated for all
purposes as having become the record holder of such shares of Common Stock at
such time.
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(c) The Company shall pay all expenses incurred by the
Company in connection with and taxes and other governmental charges (other than
income taxes of the Holder) that may be imposed in respect of, the issue or
delivery of any shares of Common Stock issuable upon the exercise of the
Warrants evidenced hereby. The Company shall not be required, however, to pay
any tax or other charge imposed in connection with any transfer involved in the
issue of any certificate for shares of Common Stock, as the case may be, in any
name other than that of the registered holder of the Warrant evidenced hereby.
(d) In connection with the exercise of any Warrants
evidenced hereby, no fractions of shares of Common Stock shall be issued, but in
lieu thereof the Company shall pay a cash adjustment in respect of such
fractional interest in an amount equal to such fractional interest multiplied by
the Market Price for one Share of Common Stock on the Business Day which
immediately precedes the day of exercise. If more than one (1) such Warrant
shall be exercised by the holder thereof at the same time, the number of full
shares of Common Stock issuable on such exercise shall be computed on the basis
of the total number of Warrants so exercised.
Section 2. Certain Adjustments.
(a) The number of shares of Common Stock purchasable upon
the exercise of this Warrant and the Exercise Price shall be subject to
adjustment as follows:
(i) Stock Dividends, Subdivision, Combination or
Reclassification of Common Stock. If at any time after the date of the issuance
of this Warrant the Company shall (i) pay a dividend on Common Stock in shares
of its capital stock, (ii) combine its outstanding shares of Common Stock into a
smaller number of shares, (iii) subdivide its outstanding shares of Common Stock
as the case may be, or (iv) issue by reclassification of its shares of Common
Stock any shares of capital stock of the Company, then, on the record date for
such dividend or the effective date of such subdivision or split-up, combination
or reclassification, as the case may be, the number and kind of shares to be
delivered upon exercise of this Warrant will be adjusted so that the Holder will
be entitled to receive the number and kind of shares of capital stock that such
Holder would have owned or been entitled to receive upon or by reason of such
event had this Warrant been exercised immediately prior thereto, and the
Exercise Price will be adjusted as provided below in paragraph 2(a)(v).
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(ii) Extraordinary Distributions. If at any time after
the date of issuance of this Warrant, the Company shall distribute to all
holders of Common Stock (including any such distribution made in connection with
a consolidation or merger in which the Company is the continuing or surviving
corporation and Common Stock is not changed or exchanged) cash, evidences of
indebtedness, securities or other assets (excluding (i) ordinary course cash
dividends to the extent such dividends do not exceed the Company's retained
earnings and (ii) dividends payable in shares of capital stock for which
adjustment is made under Section 2(a)(i) or rights, options or warrants to
subscribe for or purchase securities of the Company), then in each such case the
number of shares of Common Stock to be delivered to such Holder upon exercise of
this Warrant shall be increased so that the Holder thereafter shall be entitled
to receive the number of shares of Common Stock determined by multiplying the
number of shares such Holder would have been entitled to receive immediately
before such record date by a fraction, the denominator of which shall be the
Exercise Price on such record date minus the then fair market value (as
reasonably determined by the Board of Directors of the Company in good faith) of
the portion of the cash, evidences of indebtedness, securities or other assets
so distributed or of such rights or warrants applicable to one share of the
Common Stock (provided that such denominator shall in no event be less than
$.01) and the numerator of which shall be the Exercise Price.
(iii)Reorganization, etc. If at any time after the date
of issuance of this Warrant any consolidation of the Company with or merger of
the Company with or into any other Person (other than a merger or consolidation
in which the Company is the surviving or continuing corporation and which does
not result in any reclassification of, or change (other than a change in par
value or from par value to no par value or from no par value to par value, or as
a result of a subdivision or combination) in, outstanding shares of either
Common Stock) or any sale, lease or other transfer of all or substantially all
of the assets of the Company to any other person (each, a "Reorganization
Event"), shall be effected in such a way that the holders of the Common Stock
shall be entitled to receive cash, stock, other securities or assets (whether
such cash, stock, other securities or assets are issued or distributed by the
Company or another Person) with respect to or in exchange for the Common Stock,
then, upon exercise of this Warrant, the Holder shall have the right to receive
the kind and amount of cash, stock, other securities or assets receivable upon
such Reorganization Event by a holder of the number of shares of the Common
Stock that such holder would have been entitled to receive upon exercise of this
Warrant had this Warrant been exercised immediately before such Reorganization
Event, subject to adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 2(a). The Company
shall not enter into any of the transactions referred to in this Section
2(a)(iii) unless effective provision shall be made so as to give effect to the
provisions set forth in this Section 2(a)(iii).
(iv) Carryover. Notwithstanding any other provision of
this Section 2(a), no adjustment shall be made to the number of shares of either
Common Stock to be delivered to the Holder (or to the Exercise Price) if such
adjustment represents less than .05% of the number of shares to be so delivered,
but any lesser adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment that together with any
adjustments so carried forward shall amount to .05% or more of the number of
shares to be so delivered.
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(v) Exercise Price Adjustment.
(i) Whenever the Number Issuable upon the exercise of
the Warrant is adjusted as provided pursuant to this Section 2(a), the Exercise
Price per share payable upon the exercise of this Warrant shall be adjusted by
multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the Number Issuable upon the exercise
of the Warrant immediately prior to such adjustment, and of which the
denominator shall be the Number Issuable immediately thereafter; provided,
however, that the Exercise Price for each Share of the Common Stock shall in no
event be less than the par value of a share of such Common Stock.
(ii) If the price at which the Next Round Securities
are convertible into shares of Common Stock is adjusted pursuant to documents
that create and define the Next Round Securities, then the Exercise Price of the
Warrants shall be adjusted accordingly provided that there should be no
duplication of adjustments.
(b) Notice of Adjustment. Whenever the Number Issuable or
the Exercise Price is adjusted, as herein provided, the Company shall promptly
mail by first class mail, postage prepaid, to the Holder, notice of such
adjustment or adjustments setting forth the Number Issuable and the Exercise
Price after such adjustment, setting forth a brief statement of the facts
requiring such adjustment and setting forth the computation by which such
adjustment was made.
Section 3 No Redemption. The Company shall not have any
right to redeem any of the Warrants evidenced hereby.
Section 4. Notice of Certain Events. In case at any time or
from time to time (i) the Company shall declare any dividend or any other
distribution to the holders of Common Stock, (ii) the Company shall authorize
the granting to the holders of Common Stock of rights or warrants to subscribe
for or purchase any additional shares of stock of any class or any other right,
(iii) the Company shall authorize the issuance or sale of any other shares or
rights which would result in an adjustment to the Number Issuable pursuant to
Sections 2(a)(i), (ii), or (iii), or (iv) there shall be any capital
reorganization or reclassification of Common Stock of the Company or
consolidation or merger of the Company with or into another Person, or any sale
or other disposition of all or substantially all the assets of the Company, or
(v) there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company, then, in any one or more of such cases the Company
shall mail to the Holder at such Holder's address as it appears on the transfer
books of the Company, as promptly as practicable but in any event at least 10
days prior to the date on which the transactions contemplated in Sections
2(a)(i), (ii), or (iii), a notice stating (a) the date on which a record is to
be taken for the purpose of such dividend, distribution, rights or warrants or,
if a record is not to be taken, the date as of which the holders of record of
either Common Stock to be entitled to such dividend, distribution, rights or
warrants are to be determined, or (b) the date on which such reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up
is expected to become effective. Such notice also shall specify the date as of
which it is expected that the holders of record of the Common Stock shall be
entitled to exchange the Common Stock for shares of stock or other securities or
property or cash deliverable upon such reorganization, reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up.
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Section 5. Certain Covenants. The Company covenants and
agrees that all shares of Capital Stock of the Company which may be issued upon
the exercise of the Warrants evidenced hereby will be duly authorized, validly
issued and fully paid and nonassessable. The Company shall at all times reserve
and keep available for issuance upon the exercise of the Warrants, such number
of its authorized but unissued shares of Common Stock as will from time to time
be sufficient to permit the exercise of all outstanding Warrants, and shall take
all action required to increase the authorized number of shares of Common Stock
if at any time there shall be insufficient authorized but unissued shares of
Common Stock to permit such reservation or to permit the exercise of all
outstanding Warrants.
Section 6. Registered Holder. The persons in whose names this
Warrant Certificate is registered shall be deemed the owner hereof and of the
Warrants evidenced hereby for all purposes. The registered Holder of this
Warrant Certificate, in their capacity as such, shall not be entitled to any
rights whatsoever as a stockholder of the Company, except as herein provided.
Section 7. Transfer of Warrants. Any transfer of the rights
represented by this Warrant Certificate shall be effected by the surrender of
this Warrant Certificate, along with the form of assignment attached hereto,
properly completed and executed by the registered Holder hereof, at the
principal executive office of the Company in the United States of America,
together with an appropriate investment letter and opinion of counsel, if deemed
reasonably necessary by counsel to the Company to assure compliance with
applicable securities laws. Thereupon, the Company shall issue in the name or
names specified by the registered Holder hereof and, in the event of a partial
transfer, in the name of the registered Holder hereof, a new Warrant Certificate
or Certificates evidencing the right to purchase such number of shares of Common
Stock as shall be equal to the number of shares of Common Stock then purchasable
hereunder.
Section 8. Denominations. The Company covenants that it will,
at its expense, promptly upon surrender of this Warrant Certificate at the
principal executive office of the Company in the United States of America,
execute and deliver to the registered Holder hereof a new Warrant Certificate or
Certificates in denominations specified by such Holder for an aggregate number
of Warrants equal to the number of Warrants evidenced by this Warrant
Certificate.
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Section 9. Replacement of Warrants. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant Certificate and, in the case of loss, theft or destruction, upon
delivery of an indemnity reasonably satisfactory to the Company (in the case of
an insurance company or other institutional investor, its own unsecured
indemnity agreement shall be deemed to be reasonably satisfactory), or, in the
case of mutilation, upon surrender and cancellation thereof, the Company will
issue a new Warrant Certificate of like tenor for a number of Warrants equal to
the number of Warrants evidenced by this Warrant Certificate.
Section 10. Governing Law. THIS WARRANT CERTIFICATE SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL
BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
Section 11. Rights Inure to Registered Holder. The Warrants
evidenced by this Warrant Certificate will inure to the benefit of and be
binding upon the registered Holder thereof and the Company and their respective
successors and permitted assigns. Nothing in this Warrant Certificate shall be
construed to give to any Person other than the Company and the registered Holder
thereof any legal or equitable right, remedy or claim under this Warrant
Certificate, and this Warrant Certificate shall be for the sole and exclusive
benefit of the Company and such registered Holder. Nothing in this Warrant
Certificate shall be construed to give the registered Holder hereof any rights
as a Holder of shares of either Common Stock until such time, if any, as the
Warrants evidenced by this Warrant Certificate are exercised in accordance with
the provisions hereof.
Section 12. Definitions. For the purposes of this Warrant
Certificate, the following terms shall have the meanings indicated below:
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in the City of New York, New York are
authorized or required by law or executive order to close.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock (or equivalent ownership interests in a Person not a
corporation) whether now outstanding or hereafter issued, including, without
limitation, all Next Round Securities or Series A Preferred Shares and any
rights, warrants or options to purchase such Person's capital stock.
"Common Stock" shall mean the common stock of the Company.
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"Market Price" shall mean, per share of Common Stock, on any date
specified herein: (a) if the Common Stock is not then listed or admitted to
trading on any national securities exchange but is designated as a national
market system security, the average of the closing bid and ask price of the
Common Stock on such date; or (b) if there shall have been no trading on such
date or if the Common Stock is not so designated, the average of the reported
closing bid and asked price of the Common Stock, on such date as shown by NASDAQ
and reported by any member firm of the NYSE selected by the Company; or (c) if
neither (a) nor (b) is applicable, the Fair Market Value per share determined in
good faith by the Board of Directors of the Company which shall be deemed to be
Fair Market Value unless holders of at least 15% of Common Stock issued or
issuable upon exercise of the Warrants request that the Company obtain an
opinion of a nationally recognized investment banking firm chosen by the Company
(who shall bear the expense) and reasonably acceptable to such requesting
holders of the Warrants, in which event the Fair Market Value shall be as
determined by such investment banking firm.
"New Round Securities" shall have the meaning given it in the
Note and Purchase Agreement.
"Note and Warrant Purchase Agreement" shall mean that certain
note and warrant purchase agreement between the Company, the Holder and SFM
Domestic Investments LLC dated May 10, 2000 as the same may be amended from time
to time in accordance with its terms.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Person" shall mean any individual, corporation, limited
liability company, partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind.
Section 10. Notices. All notices, demands and other
communications provided for or permitted hereunder shall be made in writing and
shall be by registered or certified first-class mail, return receipt requested,
courier services or personal delivery, (a) if to the Holder of a Warrant, at
such Holder's last known address appearing on the books of the Company; and (b)
if to the Company, at its principal executive office in the United States
located at the address designated for notices in the Note and Warrant Purchase
Agreement, or such other address as shall have been furnished to the party given
or making such notice, demand or other communication. All such notices and
communications shall be deemed to have been duly given: (i) when delivered by
hand, if personally delivered; (ii) when delivered to a courier if delivered by
commercial overnight courier service; and (iii) five (5) Business Days after
being deposited in the mail, postage prepaid, if mailed.
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IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed as of the Issue Date.
BLUEFLY, INC.
By: /S/ KEN SEIFS
-------------------------------
Name: Ken Seifs
Title: Cheif Executive Officer
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[Form of Assignment Form]
[To be executed upon assignment of Warrants]
The undersigned hereby assigns and transfers this Warrant
Certificate to ____________________ whose Social Security Number or Tax ID
Number is _________________ and whose record address is
_____________________________________, and irrevocably appoints ________________
as agent to transfer this security on the books of the Company. Such agent may
substitute another to act for such agent.
Signature:
-------------------------------
Signature Guarantee:
-------------------------------
Date: ___________________________
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